Heritage Protection Enforcement

When initial consideration was being given to a national inventory of historic buildings, policy makers clearly determined that change should be managed and sanctions should be available for unauthorised work - an aspect of the genesis of the listing system largely overlooked by contemporary commentators.

Legislators were perhaps mindful that the identification and protection of such buildings would not met be with universal enthusiasm by owners, occupiers or their advisors.

There are some notorious examples of pre-war demolition. The loss of The Adelphi, London by Robert Adam is one of them. Demolished in 1936 to make way for offices, its loss may have still been keenly felt when S.28 (6) of the 1947 Act made demolition, alteration or extension seriously affecting the character of a listed building without notifying the local planning authority an offence. The act didn’t say how the two months advance notice should be given but introduced a penalty of up to £100 (the equivalent of £3,850 in 2017). Authorities could also undertake restitution in default and recover the cost as a common debt. How serious works would be defined, total demolitions discouraged or complete reconstruction effected is not at all clear.

It may come as something of a surprise to realise that there have been penalties for unauthorised work for as long as the listing system has been in operation, but probably no surprise that the powers are so relatively infrequently used.

Heritage enforcement work is a time-consuming and therefore a generally low workload priority for councils in the present era of reduced resources and a decline of specialist expertise; notwithstanding the increased emphasis government places on the need for effective planning enforcement.

A lack of information about prosecution activity in a case involving a Member of Parliament led to the establishment in 1996 of the national database maintained by the Institute of Historic Building Conservation. Meanwhile the notorious demolition of ‘Greenside’, Wentworth, Surrey in 2005 prompted the government to publish detailed best practice advice in 2006 (now withdrawn in the ‘bonfire of the red tape’ but invaluably still accessible online). Although listed building offences now fall within a wider locus of heritage crime, helpful guidance on sentencing for the courts has been available since 2015.

From time to time merging planning permission with listed building consent has been mooted as a way of streamlining of the system. That would involve either criminalising breaches of planning control or decriminalising listed building control – a dilemma that has never been resolved.

Research in the aftermath of ‘Greenside’ demonstrated that the law is sound and seventy years on from the passage of the 1947 Act the sanctions remain an effective deterrent if listed building control is managed effectively and properly policed by the courts but this is not possible without proper resourcing and as PPG 15 effectively and succinctly reminded us: “The physical survivals of our past are to be valued and protected for their own sake, as a central part of our cultural heritage and our sense of national identity.” Once unthinkingly or willfully altered or destroyed they are gone for good.

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